Minister of Rural Development and Land Reform v District Six Working Committee and Others (LCC54/2018(B)) [2020] ZALCC 3 (25 March 2020)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

(HELD AT CAPE TOWN)

Before: Ngcukaitobi AJ

CASENO.: LCC54/2018(B)

In the matter between:

MINISTER OF RURAL DEVELOPMENT AND LAND

Applicant

REFORM

And

DISTRICT SIX WORKING COMMITTEE

1st Respondent

MYMOENA CLAASEN

2nd Respondent

ANNIE BAM

3rd Respondent

MARIAM SIMONS

4th Respondent

CEDRICK ADAMSON

5th Respondent

AMIENA KRIEL

6th Respondent

CYRIL SAMUEL WAGENER

7th Respondent

RULING: APPLICATION FOR LEAVE TO APPEAL

1. On 5 March 2020, I heard this application for leave to appeal. The applicant for leave to appeal is referred to as the Minister of Rural Development and Land Reform, who is at present, Minister Thoko Didiza. The order which is the subject matter of the intended appeal directs Minister Maite Nkoana-Mashabane, the former Minister of Rural Development and Land Reform, to pay the costs of the postponement on 17 April 2019 in her own personal capacity.

2. I gave an order on the same date, 5 March 2020, inter alia, enquiring whether or not the current Minister for Rural Development and Land Reform, Minister Didiza, intends to pursue the application

for leave to appeal. She duly filed an affidavit in which she makes it clear that neither she nor the Department for Rural Development

and Land Reform have brought the application for leave to appeal.

3. In the order of 5 March 2020, I also enquired from Minister Nkoana-Mashabane whether or not she wishes to be joined in her personally capacity. She has stated that she does not wish to be joined in her personal capacity.

4. The result is that there is no valid application for leave to appeal before me. Nor is there a bona fide applicant in the purported application. Although Mr Budlender SC, who appeared on behalf of the respondents, urged me to exercise my discretion to join Minister Nkoana-Mashabane personally, I considered it appropriate to give her the election whether or not she wishes to be joined in her personal capacity. Now that she has stated that she does not wish to be joined, and the applicant before me is not pursuing the application, there is no applicant.

5. There is also the issue of Minister Nkoana-Mashabane’s legal fees to deal with. The order of 5 March 2020 also required the current private attorneys – not the State Attorney – who act on behalf of Minister Nkoana-Mashabane to indicate whether or not it is correct that the legal fees for bringing the application for leave to appeal are being paid by the State. This was an issue raised during the hearing. At that point, counsel for Minister Nkoana-Mashabane indicated that she had no instructions.

6. An affidavit was filed out of time and without a condonation application on 17 March 2020. The affidavit makes the startling claim that this court is acting ultra vires when enquiring into whether or not the State is paying for the Minister’s personal legal fees. The affidavit also alleges that there is a “dispute” between Minister Nkoana-Mashabane and Minister Didiza, which in the attorney’s view should be dealt with in terms of section 41 of the Constitution.

7. In my view, the alleged “inter-governmental dispute” between Minister Didiza and Minister Nkoana-Mashabane is contrived. In my order I sought an explanation whether the fees of attorneys and counsel are paid by the State, despite this being essentially a personal matter involving Minister Nkoana-Mashabane. Now that

Minister Didiza will not be pursuing the application, it becomes even more important to obtain clarity on whether the State is footing the personal legal bill of Minister Nkoana-Mashabane. Equally unsettling is the allegation that the fees may in fact be paid by the Department of Women, Youth and Persons with Disabilities, routed through the State Attorney and finally paid to the private attorneys of the Minister, plainly for her benefit.

8. The possibility of abuse of public funds in those circumstances is plain. Recently, in Democratic Alliance v President of the Republic of South Africa and Others; Economic Freedom Fighters v State Attorney and Others [2019] 1 All SA 681 (GP) the Full Court held, in reference to section 3 of the State Attorney Act, 56 of 1957:

“Section 3 is not a provision which provides authority for the appointment of private legal representatives for government officials to represent them in their private capacities in criminal proceedings against them and in related civil litigation nor does it confer the authority for state funding of such private external legal representation. It simply and clearly is not a provision that authorises the funding of the private legal costs of government officials.”[1]

9. As such the State Attorney has no power to pay for private attorneys in relation to a matter which affects a state functionary personally. If there are allegations of abuse of public funds at the State Attorney’s office to fund the personal attorneys of the Minister for her own personal benefit, it is the duty of this court to make such enquiries.

10. To return to the issue at hand, Minister Didiza is not a party before this court. Minister Nkoana-Mashabane refuses to join the application for leave to appeal personally, despite my express invitation to her. There is accordingly no “inter-governmental dispute” relevant to the matter at hand.

11. There is no basis to the suggestion that this court is acting outside its authority when enquiring into who is paying the legal fees of the application for leave to appeal. The liability for those fees is the subject matter of the present application for leave to appeal. Indeed, the very point of the order granted was to ensure that the State is not liable for the costs incurred as a result of Minister Nkoana-Mashabane’s grossly negligent conduct.

12. In the light of the above, and taking into account the manifest lack of merit in the underlying application for leave to appeal, the entire matter should be struck from the roll, with costs to be paid by Minister Nkoana-Mashabane, in her personal capacity. For avoidance of doubt, these costs shall not be paid by the State in any of its various incarnations.

13. Although I intend to strike the application from the roll, the application for leave to appeal is singularly lacking in merit, that it constitutes an abuse:

13.1It is a costs only appeal, but fails to advance any exceptional circumstances as required by section 16(2)(a) of the Superior Courts Act 10 of 2013.[2]

13.2The application is also entirely misconceived insofar as it fails to recognize that a decision on costs is exercise of true discretion, which can only be appealed in circumscribed circumstances.[3]

13.3The grounds of the leave to appeal are without merit. Bizarrely, one of the grounds for leave to appeal – repeated twice in the notice of application for leave to appeal – is that I wrongly found Minister Nkoana-Mashabane in contempt of court, despite the judgment explicitly finding her not in contempt. Another ground, inexplicably, is that I failed to give reasons for the personal costs order, yet the judgment is extensive in its reasons.

13.4Another ground is that Minister Nkoana-Mashabane was entitled to apply for postponement, and she gave an acceptable explanation for the application for postponement on 17 April 2019. I rejected her last minute application and found that costs should be on a punitive scale, when I gave judgment in open court on 17 April 2019. Same counsel who acts for Minister Nkoana-Mashabane in this application was present in court on 17 April 2019. No application for leave to appeal was lodged against the punitive scale costs. What remained was who would be liable for those costs, a matter which was decided in the final judgment. Yet, the application for leave to appeal, filed many months after 17 April 2019, seeking to challenge also the punitive scale of the costs, provides no explanation for the lengthy delay since 17 April 2019, and asks for no condonation. In fact the application for leave to appeal wrongly conflates the issue of liability for the costs, with the punitive scale of the costs.

13.5It will be recalled that Minister Nkoana-Mashabane’s ultimate justification for seeking a postponement was that she wanted to dispute the main allegation of the respondents (applicants then) that she had failed to comply with the order of Kollapen J. In the event, she failed. At the time she agreed to the Kollapen J order and when she asked for postponement, she knew that the court order of Kollapen J would not be complied with in the agreed time frames. Hence, she was held fundamentally to be reckless and grossly negligent as to her public duties, and as such a personal costs order, justified. To grant leave to appeal, I should be satisfied of a reasonable prospect that the Supreme Court of Appeal “would” come to a different conclusion, which is plainly not the case here.[4]

13.6The complaint that the Minister’s constitutional rights in terms of section 34 of the Constitution have been infringed is without substance. No facts are advanced to back the argument. The Minister’s access to this court was never restricted. No one has a right to a postponement of a court case. When a postponement is refused that does not impinge the applicant’s right of access to court.

14. There are accordingly no valid grounds for leave to appeal.

15. The refusal by Minister Nkoana-Mashabane’s attorneys to explain whether the State is paying for their legal fees is gravely

concerning. It shall be recalled that the matter first arose in correspondence, to which Minister Nkoana-Mashabane’s attorneys replied indignantly and evasively. That indignation and evasiveness has been carried through to the current affidavit, filed out of time, on 17 March 2020, and without an application for condonation, and with no explanation. This is a matter which must now be referred to the State Attorney and the Legal Practice Council for its further enquiry.

16. I considered granting no order as to costs in relation to the present application. But I think that would be iniquitous. The District Six Working Committee and the individual respondents have incurred costs in their opposition to this application, which has turned out to be frivolous. They should not be left out of pocket. At the same time, Minister Nkoana-Mashabane, who has been accused of personally benefitting from the State has not been forthcoming with the facts. Her conduct, and that of her private attorneys, should not be rewarded. She is fully aware that the present application is personal, not state related. She cannot hide behind the citation of “Minister”, particularly where the cited Minister expressly distances herself from the litigation.

17. Minister Nkoana-Mashabane has had ample warning and notice that costs of pursuing this litigation would be borne by her. This entire

litigation is about this very issue. Despite the warning, she has pursued this application. It is necessary to make it abundantly clear that the State is not liable for the costs of this application. Bearing in mind the transparent contrivance behind this application,

if I do not order a personal costs, I would be condoning a further abuse of this court’s processes.

18. Finally, it should be stressed that these litigious games do nothing to advance the legitimate expectations of the claimants, who after 25 years of living in a democracy, remain without land, but an empty promise. The Constitution says it is their right to receive restitution of their dispossessed land, not a privilege to be given, or withheld at the instance of Ministers of State. Just like the main application, the costs order in this judgment should also be understood as reflective of this court’s strong disapproval of the attitude displayed by Minister Nkoana-Mashabane towards this court and the landless claimants.

19. In the circumstances, the following order is issued:

1 The application for leave to appeal, which was filed by the Minister for Rural Development and Land Reform is struck from the roll.

2 Minister Nkoana-Mashabane is directed to pay the costs incurred in the application for leave to appeal, in her personal capacity.

3 The Registrar of this court is directed to transmit this judgment, the order of 5 March 2020, and the affidavit from the attorneys of Minister Nkoana-Mashabane of 17 March 2020 to:

3.1 the Legal Practice Council to consider whether or not, in their discretion, there is a prima facie case of misconduct which warrants the attention of the Council; and

3.2 the national head of the State Attorney, to investigate whether any funds belonging to the State through the Department of Women, Youth and Persons with Disabilities, have been used to pay the private attorneys of Minister Nkoana-Mashabane, and if so whether in their discretion there is any basis to recover any monies already paid.

____________________

T Ngcukaitobi

Acting Judge of Land Claims Court

23 March 2020

Appearances

For Applicants: Adv. H. Ngomane, Adv. M. Sekhethela – Instructed by Mafona Ramothwala Inc.

For Applicants: Adv. G. Budlender SC, Adv. A. Nacerodien & Adv. J Blomkamp – Instructed by Norton Rose Fulbright

[1] At para 62.

[2] See: Khumalo and Another v Twin City Developers (328/2017) [2017] ZASCA 143 (2 October 2017) at paras 57-60.

[3] See: Naylor & Another v Jansen 2007 (1) SA 16 (SCA) at para 14.

[4] Section 17(1)(a) of the Superior Courts Act 10 of 2013.